IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 639 OF 2017 Pr. Commissioner of Income Tax-2 Appellant Vs Tata Sons Ltd. Respondent Mr.Suresh Kumar, for Appellant. Mr.Shrihari Iyer, for Respondent. CORAM : M.S.SANKLECHA & NITIN JAMDAR, JJ. Date : 19 August, 2019. P.C. : This Appeal under section 260-A of Income Tax Act 1961(the Act ), challenges order dated 9 December 2015 passed by Income Tax Appellate Tribunal, Mumbai ( Tribunal ). This Appeal relates to Assessment Year 2004-05. 2. Mr.Suresh Kumar, learned counsel for Revenue urges following two questions of law for our consideration : (i) Whether Tribunal was correct in holding that due process of law has been not been followed in reopening of case by AO when reasons were recorded before issue of notice u/s 148 of IT Act 1961? ::: Uploaded on - 26/08/2019 ::: Downloaded on - 27/08/2019 10:02:25 ::: 2 10 ITXA 639 -2017.doc (ii) Whether Tribunal was justified in law in holding that error in dates mentioned while furnishing reasons for reopening and quashing reopening proceedings while failing to appreciate that such mistake is covered under u/s 292B of IT Act? 3. Regarding Question no.(i) . a) On 6 March 2009, Assessing Officer issued notice under section 148 of Act seeking to re-open assessment for Assessment Year 2004-05. Respondent contended that reopening notice was issued much before reasons were recorded for reopening assessment, thus reopening notice was without jurisdiction. However Assessing Officer did not accept Respondent s contention and passed order of assessment under section 143(3) r.w. section 148 of Act. b) In appeal, Commissioner of Income Tax (Appeals) held that reopening notice had been issued without having recorded reasons which led Assessing Officer to form reasonable belief that income chargeable to tax escaped assessment. It records that reasons were recorded on 19 March 2009 while impugned notice issued is dated 6 March 2009. In above facts, Commissioner of Income Tax (Appeals) held entire proceeding of reopening to assessment is vitiated as notice under section 148 of Act is bad in law. ::: Uploaded on - 26/08/2019 ::: Downloaded on - 27/08/2019 10:02:25 ::: 3 10 ITXA 639 -2017.doc c) Being aggrieved Revenue filed Appeal to Tribunal. Tribunal specifically asked Revenue to produce assessment record so as to substantiate its case that impugned notice under section 148 of Act was issued only after recording reasons for reopening assessment. Revenue produced record of assessment for Assessment Year 2004-05 before Tribunal. However Tribunal on facts found from entries made in Assessment record produced, found entry as regards issue of notice under section 148 dated 6 March 2009. However no entries prior thereto i.e. 6 March 2009 were produced before Tribunal, so as to establish that reasons were recorded prior to issue of notice dated 6 March 2009 u/s.148 of Act. Thus Tribunal concluded that prior to 6 March 2009 there is nothing in record which would indicate that any reasons were recorded prior to issue of notice. Therefore in absence of Revenue being able to show that reasons were recorded prior to 6 March 2009, impugned order held that reopening notice is without jurisdiction. d) We note that both CIT(A) and Tribunal have concurrently come to finding of fact that no reasons were recorded by Assessing Officer prior to issuing reopening notice dated 6 March 2009. Nothing has been shown to us to suggest that above finding of fact is perverse. Thus we see no reason to entertain ::: Uploaded on - 26/08/2019 ::: Downloaded on - 27/08/2019 10:02:25 ::: 4 10 ITXA 639 -2017.doc this question as it does not give rise to any substantial question of law. 4. Regarding Question no.(ii). a) Section 292B of Act, would have no application in present facts as condition precedent for issuing of reopening notice namely, recording of reasons has not been satisfied by Assessing Officer. In this case on facts it has been found that no reasons were recorded by Assessing Officer in support of reopening notice dated 6 March 2009. Thus it is not case of clerical error, but substantial condition for valid reopening notice viz. recording of reasons to form reasonable belief is not satisfied. 5. In above view, questions as proposed do not give rise to any substantial question of law. Thus not entertained. 6. Appeal dismissed. (NITIN JAMDAR, J.) (M.S.SANKLECHA, J.) Pr. Commissioner of Income-tax-2 v. Tata Sons Ltd